Supreme Court of WA|2011-11-24|Before: Kechnie J

1 McKECHNIE J: The appellant was charged with obstructing a police officer in the execution of his duty. After a trial stretching over four days, he was convicted and given a conditional release order. He now seeks leave to appeal, not on any grounds that attack the finding or legal conclusions of the magistrate, but on three grounds as follows:

Magistrate Benn was wrong in law and in fact when he refused to sit under Chapter 3 of the Commonwealth of Australia Constitution 1901.
Magistrate Benn was wrong in law and in fact when he failed to swear his oath of allegiance to the Crown in accordance with the 3rd schedule of the Commonwealth of Australia Constitution Act 1901.
Magistrate Benn was wrong in law and in fact when he refused to state where in the Commonwealth of Australia Constitution 1901 his authority to sit in the court comes from without having sworn an oath of allegiance to the Crown.

2 The appellant was charged along with another person. Each was unrepresented at trial, though the appellant obtained the assistance of Neil Russell Taylor as a McKenzie friend. The prosecution case was that at about 12.50 pm on 29 April 2010 the appellant and a female were in the back of Court No 1 of the Kalgoorlie Magistrates Court which had been closed due to disorderly behaviour of another person. The presiding magistrate had left the court.

3 Various police and court security staff were attempting to gain control of the court and get people to leave the court. The appellant intervened in the arrest of another person and was asked to step back, when it was alleged that he shoved a senior constable in the chest with a briefcase, not particularly hard. The constable stepped forward to deal with the appellant and was punched by him. Another officer came to the assistance and the appellant resisted arrest, trying to grab a police officer's firearm.

4 The first day's hearing was unexceptional, but things began to get weird on the second day. When the appellant asked for an adjournment, which was refused by the magistrate, the following interchanged occurred:

MR HEDLEY: Sir, Can I ask you a very simple question, sir? Is this West Australian state part of the Commonwealth of Australia?

HIS HONOUR: It's not for me to give you legal advice, Mr Hedley. That's a matter for you to sort out.

MR HEDLEY: It's not about advice, sir. You live in this country. You've got the Royal Coat of Arms.

5 Matters got stranger after the next witness was called and the prosecution sought to tender a certificate of title of the Kalgoorlie court building showing the ownership of the building. In crossexamination the appellant asked the following lengthy question of a witness:

So excuse me - the Attorney General is a company ma'am. It is an ABN holder. It is a subsidiary of the Commonwealth of Australian which is registered in the United States in Delaware, in 10 square kilometres of DC. The Attorney General office cannot own his building ma'am. It's a public building. It is meant to be held by the Crown. So have you got any documentation showing the original Crown ownership of this building, ma'am (ts 74).

MR HEDLEY: I also wish to put on the record that this is still sovereign - this is owned by the Sovereign subject Queen Elizabeth II, and this is a Crown building. Because that emblem behind the Magistrate is the royal coat of arms, it dictates this is a Crown building.

7 There was then an interchange with the prosecutor. The magistrate asked the appellant whether he took exception to the magistrate taking judicial notice of the fact that the building is a courthouse operated by the WA Government through the Department of the Attorney General. The appellant rejected the whole thing:

As in 2004 Jim McGinty changed the name, removed the crown, which you can't - under the Styles or Titles Act (indistinct) - It's felony, treason. So the government now is not the government, sir. The Attorney General is an ABN holder and a company (ts 77).

8 The magistrate correctly pointed out that these arguments had been raised and argued a number of times in the Supreme Court and had been rejected as having no merit whatsoever: see Glew v Governor of Western Australia [2009] WASCA 123; Krysiak v Hodgson [2009] WASCA 114. Matters then got completely out of control with the appellant attempting to question the magistrate 'wanting his constitutional rights upheld' and the magistrate trying to maintain order.

9 The hearing seemed to get back on an even keel until the close of the prosecution case. The appellant gave evidence and called witnesses. In due course the magistrate delivered reasons convicting the appellant. Those reasons are not the subject of any ground of appeal. The magistrate said in the course of his final reasons:

Those are matters which have been considered at length by the Supreme Court in a number of cases including a number of cases involving Mr Glew, and there is also a case in Hodgson, if I recall correctly. Yes, Krysiak v Hodgson. In my view all of the matters you raised in terms of legal or constitutional issues are connected to or form part of the arguments that have been considered and rejected by the Supreme Court as having no legal merit, and they are arguments in my view that have no legal merit (ts 36).

10 The magistrate proceeded to the sentencing phase. When he came to sentence the appellant, the following interchange occurred:

MR HEDLEY: Sir, can you please provide your certificate of commission and your oath of allegiance, sir, as stated under chapter 3 of the Constitution 1901, sir, to prove your authority to hear, to sit as a Crown court, as you've already mentioned, it is a Crown court?

HIS HONOUR: No, Mr Hedley, I will not, and if you persist in that request, then I will consider you being charged with contempt. So do not

MR HEDLEY: Sir, you are in contempt of this court.

11 The magistrate was then asked again to produce his authority of commission, 'To prove your authority here in this court.' Things seemed to get very untidy in the courtroom for a period, but when the court resumed, the magistrate accepted the appellant's apology and decided not to proceed with the contempt of court that had been foreshadowed.

Disposition of this application for leave to appeal

12 So I come to the application for leave to appeal. Under the Criminal Appeals Act 2004 (WA), my obligation is only to grant leave if there are reasonably arguable grounds of appeal. The appellant did not file any formal submissions, but he has filed a document entitled Presentation for Scott Hedley in Summation, which I take to be in part his submissions, and I have had the opportunity of reading that. He has annexed to that various extracts of Acts, and the instructions passed under the Royal Sign Manual by Her Majesty Queen Victoria.

13 He has also filed a document entitled Affidavit of Reservations of Rights, whatever that may be. He has affixed his fingerprint to the document. I assume it is his. I have encountered this before: see Krysiak v Hodgson. It is as meaningless now as it was then.

14 The appellant's argument in essence is that no Act of Parliament since 1919 has been valid. His argument seems to turn on the instructions by Her Majesty to which I have referred. The appellant's misunderstanding of fundamental Constitutional principles is no doubt behind this submission. However, it is wrong. The State has ample power to make laws for the peace, order and good government of Western Australia. The State is a legal entity under the Constitution of the State and acknowledged under the Commonwealth Constitution, s 106.

15 The magistrate was quite correct in his appreciation of the law and the appellant would have done well to have followed his judgment instead of lodging these grounds of appeal. Although having heard the appellant, it is clear that he holds these misguided views very strongly. The fact that a person is unrepresented is a misfortune, not a privilege. However, the law does not change because a selfrepresented litigant has limited understanding or knowledge.

16 First, as the Court of Appeal has abundantly made clear in Shaw v Jim McGinty [2006] WASCA 231; Glew v Shire of Greenough [2006] WASCA 260; Glew Technologies v Department of Planning and Infrastructure [2007] WASCA 289, and as single Judges have made clear in Krysiak v Hodgson [2009] WASC 16 and Williamson v Hodgson [2010] WASC 95, the central tenet of the appellant's proposition is fallacious.

17 Secondly, a magistrate is not required to produce his or her authority. The constitution and jurisdiction of the Court according to law is presumed: See Magistrates Court Act 2004 (WA) s 34.

18 Thirdly, at no time was the Constitution of the Commonwealth ch III ever engaged in these proceedings. The magistrate was sitting to hear and determine a matter entirely within the legislative competence of the jurisdiction of the State of Western Australia.

19 I have considered whether the Judiciary Act 1903 (Cth) s 78B is applicable, but have concluded that it does not apply to the arguments which have been mounted in this appeal. This in truth has nothing whatever to do with the matter arising under the Commonwealth Constitution, or involving its interpretation. The proposed grounds of appeal have no basis in law and are vexatious. Leave to appeal is therefore refused.

Australia Constitution Act 1901

HEDLEY -v- SPIVEY [2011] WASC 325 (24 November 2011)

At a glance

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Judgment (26 paragraphs)

Disposition of this application for leave to appeal

Legislation Cited (3)